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*CHAP. III.

Of the Proviso contained in the second Section.

THIS statute provides, (a) that if any person entitled to a writ of formedon, or having a right to enter, be, at the time of such right or title first descended, within age, feme covert, non compos mentis, imprisoned, or beyond the seas, such person and his heirs may, notwithstanding the twenty years be expired, bring his action, or make his entry, as he might before, so that he sue forth the same within ten years after the disability removed, or the death of him having the right.[1]

(a) 2d Section.

[1] The 3d section of the Statute of Limitations of the state of New-York (1 R. L. 185, 186.) provides, "That if any person "entitled to any such writ of Scire Facias, or to make such en"try, be at the time such right or title first descended or accrued "within the age of twenty-one years, feme covert, insane or impri"soned, such person and his heirs, shall or may after the said "twenty years be expired, bring such action or make such "entry as he or they might have done before the expiration of "the said twenty years, so as such person within ten years after "such disability removed, or the heir or heirs of such person within ten years after his death, sue forth such writ or make such en"try, and at no time after ten years as aforesaid."

The Limitation Act of 1814 [Kentucky] operates on conveyances made by non-residents made to residents before the passage of the act, so as to take away the ten years allowed by the act of 1796, to commence suit after return to the state. Luckett vs. Dunn & Al. 3 Litt. Rep. 218.

In the case of Pancoast's Lessee vs. Addison, (1 Har. & Johns. Rep. 350. 356.) it was Held, That a non-resident of the state, [Maryland] but who is a resident of one of the United States, is not barred by the Statute of Limitations in an action of ejectment. And CHASE, Ch. J. said, "The Statute of Limitations with the "savings is a beneficial law for the purpose of quieting posses"sions, &c. but without the savings it would be a rigorous and unjust law. It does not extend to persons out of the state who

It is to observed, that the statute of limitations only runs in bar of the action or right therein mentioned; but if the plaintiff

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who cannot be supposed to know the law." & Vide Brent's Lessee vs. Trasker, 1 Harr. & McHen. Rep. 89,

The terms "beyond seas," in the proviso or saving clause of a Statute of Limitations are equivalent to without the limits of the state where the statute is enacted; and the party who is without those limits is entitled to the benefit of the exception. Murray's Lessee vs. Baker & Al. 3 Wheat. Rep. 541. Shelly & Al. Ex'ors. vs. Guy, 11 Wheat. Rep. 361. Lessee vs. Addison,

1 Harr. & Johns. Rep. 350.

Pancoast's

Contra, Ward vs. Hallam, 2 Dall. Rep. 217.

"It being a clear principle of law, that a possessor cannot avail "himself of prescription against minors." Calvit vs. Innis, 10 Mart. Rep. 289. (per MATHEWS, J. delivering the Opinion of the Court.) & Vide, Gayoso De Lemos vs. Garcia, 1 Mart. Rep. (N. S.) 324.

A person who was a minor at the time of the death of his ancestor, has five years after he comes of age to bring his action for the recovery of his lands. Rochell ads. Holmes, 2 Bay's Rep. 487. & Vide Saxon & Ux. vs. Barksdale & Al. 4 Eq. Rep. (Dessauss) 522. Den ex dem. Park vs. Cochran & Al. 1 Hayw. Rep. 170.

528.

A feme covert is allowed 7 years after discoverture to sue for lands. Gore & Al. vs. Marshall & Al. 3 Marsh. Rep. (Ky.) 319.

Prescription does not run against the wife in favour of the purchasers of her property, although separated. Prudhomme vs. Dawson & Al. 3 Mart. Rep. (N. S.) 161.

In the case of Lamar vs. Jones & Al. (3 Harr. & McHen. Rep. 328. 332. on Appeal,) the bill stated that complainant's father mortgaged the premises, &c. on the 1st of October, 1756, subject to a clause of redemption on the 1st of October, 1757, and continued in possession till his death in 1759, leaving a widow, and complainant his only child. After the death of complainant's father the mortgagee took possession of the premises, and on the 28th March, 1760, the Heir of the mortgagee sold the land to the ancestor of the defendants, for £100. That the complainant on the 7th of November, 1783, paid the mortgagee's agent the principal and interest due on the said mortgaged premises, and which were released to him. That the complainant tendered to the de. fendants the sum of £150; that the defendants have made considerable profits from the land, &c.

The defendants in their answer set up the length of time in bar to the complainant's claim and right of redemption. It appeared

have a right of a higher nature, if he can maintain a writ of right

from testimony that the complainant was about twelve years old when bis father died.

in

The Chancellor,. HANSON, on the 9th of March, 1791, decreed that the complainant was not entitled to the relief prayed by his bill, and dismissed the same, assigning as his reasons, that "the "time limited by law for making an entry into lands, held under "an adverse title having with great propriety been adopted by "the court of Chancery in England, for barring the redemption of "lands held peaceably under a mortgage, after the day of pay"ment; and the said limitation having already been adopted by "this Court, and the time within which an entry may be made on "lands held by an adverse title, being either twenty years after "the right accrued, or ten years after the arrival at full age, "case the right accrued to the person claiming during his infancy; "and the Chancellor being of Opinion, that inasmuch as the Legis"lature of this State did not think proper to suspend, during the "late war, the operation of the Acts of Limitation with respect "to a right of entry, (as it did in other cases,) this Court ought not, by allowing a suspension, to introduce a variance between "the rules of law and the rules of equity, which have so often, by "Chancellors in England, been declared the same with respect to "the limitation of suits; and the Chancellor being further of "Opinion, that even if a suspension be allowed by this court, it "could not be allowed for more than four years, it being well "known that during the war there was no obstruction to the pro"secution of suits in this Court for more than the said number of years, since the possession of the mortgagee, and almost twenty "years since the arrival at full age of the compainant had elapsed "before the filing of this bill. It is therefore, this 9th day of "March, 1791, by the Chancellor and the authority of this Court, "adjudged, &c. that the complainant is not entitled to the relief "prayed by his bill, and that the said bill be dismissed, but with66 out costs."

"

But this cause being carried up by Appeal, the Court of Appeals, in June, 1793, gave the following Opinion:

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"It is laid down as a rule, that mortgages are held not to be "within the Statute of Limitations; but it was thought reasona"ble to establish a period at which, prima facie, the right of redemption shall be presumed to be deserted by the mortgagor, "unless he be capable of producing circumstances to account for "his neglect; and Chancery having adopted a variety of those "circumstances, to wit, fraud, acknowledgment, infancy, igno

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rance, lawsuits, &c. of most of which the parties cannot avail "themselves at Common Law, there is certainly a deviation in "such cases from its strictness.

for the same lands into which he could have entered but for the

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"No case has been cited to show that Courts of Chancery have adopted that part of the clause of the statute of 21 Jac. I. "which allows infants the liberty, after the twenty years are expired, to bring actions within ten years after their coming to full age; and the Judges, after diligent search, not being able to find any, although from the year 1624, in which the statute was 66 made, to the year 1793, many cases, in all probability, have happened; an inference may be drawn from thence that a doctrine 66 prevailed, that when adverse possession was taken from the infant, limitations did not run on him until his full age, and that this doctrine is not impeached in the dictum of Lord Talbot, in Belch & Harvey, as it is not an adjudged case; but on the contrary, there are adjudged cases where infancy, lawsuits and other circumstances, have excused the party, and where an infant being plaintiff, adverse possession was taken of him six years before he came of age, and that period being accounted for by infancy, although twelve years had elapsed after his coming of age before bill filed; yet as it did not amount to twenty years, .. he had a right to bring his bill, and the party here being similarly circumstanced, being six years an anfant, and bringing his bill in time, if the six years be not accounted as part of the time. "We do, therefore order and adjudge that the Decree of the Chancellor be reversed, and that the appellant have liberty to proceed before him on the bill, and that he hear the cause upon "the merits, according to the course of that Court." & Vide Trustees of Lexington vs. Lindsay's heirs, 2 Marsh. (Ky.) Rep. 445. Higginson, Survivor, &c. vs. Air & Al. 1 Eq. Rep. (Dessauss.) 427.

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"There is no doubt, that a party has, in every event, twenty years to make an entry; and if under disability when the right or title of entry first accrued, then such person may, notwith"standing twenty years have expired, bring an action or make an "entry, within ten years after the disability is removed. Jackson ex dem. Corson & Al. vs. Cairns & Al. 20 Johns. Rep. 306. (per SPENCER, Ch. J. delivering the Opinion of the Court.) & Vide Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 94. 101. 105. Demarest & Ux. vs. Wynkoop & Al. 3 Johns. Ch. Rep. 137.

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But in the case of Pender vs. Jones, (2 Hayw. Rep. 294.) TAYLOR, J. said, " Iam of opinion, that if seven years be completed at a period of time, occurring after arrival at full age, when part of "the seven years elapsed during infancy, that the party has three years from his arrival to age to make his entry or claim, and no 41 more.

An estate devised to executors, or such of them as shall qualify, is a contingent executory devise, and does not vest until that

statute, he may do so notwithstanding; so that he prosecute such right within(a) sixty years of the seisin of his ancestor : [2] for a bar(b) is of the particular action, or of any of the same nature or degree only, and not of any action of a higher nature; which makes this difference between the statute of limitations and the statute of fines; under the latter, a fine duly levied, and non-claim, bars every right; but the former, in many cases, bars only a specific remedy.

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*When the statute begins to run, no subsequent disability stops it ;[1] therefore, if the person, at the

event occurs; until then, the title descends to the heirs. And where, in such case, after the testator's death, but before the qualification of the executors, and whilst his heirs were infants, an entry was made on part of their land under a junior patent; it was Held, that the Statute of Limitations did not commence running, until the qualification of the executors, or one of them. heirs vs. Hill, 5 Litt. Rep. 308.

May's

"With regard to executory devises, whether certain or contingent, it is one of their properties that they cannot be aliened "or barred by any mode of conveyance, whether by recovery, fine, or other act. Therefore executory devises preserve the "estate from injuries, against the particular estate, and thus cre"ate a kind of perpetuity, on which courts have placed sundry "restrictions. May's heirs vs. Hill, 5 Litt. Rep. 312, 313. (per MILLS, J. delivering the Opinion of the Court.)

[2] The 2nd section of the Statute of Limitations of the State of New-York, limits all real actions to twenty-five years, whether brought on the demandant's own seisin or possession, or that of his ancestor or predecessor; " Provided always, That no part of "the time during which the plaintiff or person making avowry or "cognizance shall have been within the age of twenty-one years, "insane, feme covert or imprisoned, shall be taken as a part of "the said limitation of twenty-five years." (1 R. L. 185.)

[1] "The general rule is, that when the Statute of Limitations once begins to run, it continues to run, notwithstanding any sub"sequent disability." Peck vs. Randall's Trustees, 1 Johns. Rep. 176 (per KENT, Ch. J. delivering the Opinion of the Court.) & vide to the same point, Crozier vs. Gano & Ux. 1 Bibb's